Seyfarth Synopsis: Since the days of Buddy the Elf’s short stint as a retail employee, New York City and many other municipalities have adopted predictive scheduling laws. Though California does not yet have a such a law, San Francisco, Emeryville, and San Jose have adopted predictive scheduling ordinances. With the bustling holiday season upon us, covered employers should make sure that they are complying with these ordinances. We highlight here the requirements of these predictive scheduling ordinances while pointing out some of the best ways to ensure compliance with them.

Which employers are covered? San Francisco’s Formula Retail Employee Rights Ordinances apply to retail establishments with at least 40 locations worldwide and 20 or more employees in San Francisco. The term “retail establishment” is defined loosely to cover many businesses. An employer is considered a retail establishment if it maintains at least two of the following features: a standardized array of merchandise, a standardized facade, a standardized decor and color scheme, uniform apparel, standardized signage, a trademark, or a servicemark. Thus, a food establishment may be considered a retail establishment under the Ordinances. (We know what you are thinking, and no: covered food establishments are not limited to those serving the four main elf food groups—you know, candy, candy canes, candy corns, and syrup.)

In addition to applying to retail establishments, the provisions apply to property services contractors (e.g., janitorial and security services) for work performed in San Francisco at a retail establishment covered by the Ordinances.

What is required under the law? Employers that are covered by San Francisco’s Ordinances are required to do the following:

Provide notice:

Provide new employees with an initial estimate of their work schedules upon hire. This estimate must include the minimum number of working and on-call shifts the employee can expect to work and the days and hours of those shifts.

Provide employees with notice of their work schedules at least two weeks (14 days) in advance.

Provide compensation for changes to schedules:

If a change is made to an employee’s schedule after the work schedule has been posted, the employer may be required to compensate the employee for the changes. If between 24 hours and seven days remain until the shift, employees are entitled to one hour of pay at regular rate; if employees receive less than 24 hours’ notice, they are entitled to two hours of pay at regular rate for each shift of four hours or less, and four hours of pay at regular rate for each shift of more than four hours.

If an employee is scheduled for an on-call shift but is ultimately not required to come into work, then the employee is entitled to two hours of pay at the employee’s regular hourly rate for each shift of four hours or less, and four hours of pay at the employee’s regular hourly rate for each shift of more than four hours.

Exceptions: Notice and compensation are not required if a change was needed to address unexpected employee absences due to illness, vacation, or employer-provided time off of which the employer had less than seven days’ notice. Similarly, notice and compensation are not required if a change was needed to address unexpected employee absences due to failure to report to work, termination, or disciplinary action. Similarly, employees are not entitled to notice or compensation when they have to work overtime. To review all of the applicable exceptions, click here.

Offer additional work: Before hiring new employees the employer must first offer the additional work to existing qualified part-time employees.

Equal treatment: Employers must treat part-time and full-time employees equally with respect to wages, access to time off, and promotion eligibility.

Which employers are covered? Emeryville’s Fair Workweek Ordinance applies to retail firms with 56 or more employees globally, and fast food firms with 56 or more employees globally and 20 or more employees within Emeryville. The term “retail firm” is defined narrowly and includes department stores and specialty retailers. A fast food firm is one that does not serve alcohol and that requires patrons to pay before they eat. So if you are serving up the “World’s Best Cup of Coffee” in Emeryville, you just might be covered by the City’s Ordinance.

What is required under the law? Employers that are covered by the Emeryville Ordinance must do the following:

Provide notice:

Provide new employees with an initial estimate of their work schedules upon hire. This estimate must include a good faith estimate of the employee’s work schedule.

Provide employees with notice of their work schedules at least two weeks (14 days) in advance.

Provide compensation for changes to schedules:

If a change is made to an employee’s schedule after the work schedule has been posted, the employer may be required to compensate the employee for the changes. If between 24 hours and 14 days remain until the shift, the employee is entitled to one hour of pay at their regular rate. If less than 24 hours’ notice is provided and the employee’s hours are canceled or reduced, the employee is entitled to four hours or the number of hours in the scheduled shift, whichever is less. Employees are entitled to one hour of pay at their regular rate for all other changes.

Exceptions: As with San Francisco’s Ordinances, Emeryville’s Ordinance contains exceptions. Emeryville has far fewer exceptions, however, than San Francisco does. For instance, requiring an employee to work overtime constitutes a change under the Emeryville Ordinance and entitles the employee to additional pay.

Offer of additional work: Before hiring new employees, the employer must first offer the additional work to existing qualified part-time employees.

Entitlement to rest periods: Employers must not schedule or require an employee to work during rest periods, without the employee’s consent. The rest period includes the first 11 hours after the end of the previous calendar day’s shift and the first 11 hours following the end of a shift that spanned two calendar days. Employees who agree to work during the rest period are entitled to compensation at one-and-a-half times their regular rate of pay.

San Jose’s Elf-Sized Predictive Scheduling Ordinance

Though San Jose’s Opportunity to Work Ordinance is not, strictly speaking, a predictive scheduling law, the ordinance does require employers to offer additional work to existing qualified part-time employees before hiring new employees. To learn more about San Jose’s Ordinance, click here.

Though navigating the San Francisco, Emeryville, and San Jose predictive scheduling ordinances is not as difficult as navigating one’s way through the seven levels of the Candy Cane forest, through the sea of swirly twirly gum drops, and out the Lincoln Tunnel, we want to help employers make sure that they are compliant. Here are some tips to help covered employers navigate these predictive scheduling laws:

Employers should be sure to keep their employees informed by providing employees with predictive scheduling policies.

To the extent possible, employers should try not to change employee schedules after they have been posted. That would be the simplest way to avoid liability under the Emeryville and San Francisco ordinances.

At least with respect to covered employees working in San Francisco, employers should minimize or eliminate the use of on-call shifts, except where necessary. Remember, absent limited exceptions, on-call employee who call in and learn their services are not required will be entitled to predictability pay.

Though the ordinances do not require communications regarding schedule changes to be in writing, employers would be wise not to solely rely on oral exchanges. It is best to have a signed, written record of schedule receipt and schedule changes.

Though the holiday season is an especially busy time for many employers, they should avoid hiring seasonal employees until they have offered the additional hours that they need covered to existing part-time employees.

At least in Emeryville, employers should try not to ask employees to work overtime. A covered Emeryville employee who works overtime is not only entitled to compensation at one-and-a-half times their regular rate of pay, but also entitled to one hour of predictability pay.

Workplace Solutions

With the holiday season upon us, employers have a lot to do. One important thing to do is to take the time to comply with any predictive scheduling law. Keep in mind that while California is peculiar, it is not the only place where one can find predictive scheduling laws. Don’t hesitate to reach out to Seyfarth to help you determine whether you are a covered employer under any state or municipal predictive scheduling laws.

About

Published by Seyfarth Shaw LLP, this blog is for in-house attorneys, HR professionals, business owners, and managers who face real issues on a daily basis and need practical solutions to address them. We aim to provide timely, topical information on the challenges that California employers face. Unlike blogs that simply provide legal updates, this blog will have a running series of Workplace Solutions that will address evolving areas of interest, including California leaves of absence, recruiting and hiring, trade secrets, and the use of social media.